Fordham v Fordyce - [2006] NSWLEC 109

Land and Environment Court

of New South Wales

CITATION: Fordham & Anor v Fordyce [2006] NSWLEC 109

PARTIES:
APPLICANT
Gary Shaun Fordham and Narelle Jane Fordham
RESPONDENT
Louise Aileen Fordyce

FILE NUMBER(S): 31228 of 2005

CORAM: Preston CJ

KEY ISSUES:
Appeal :- appeal from Local Court - order for access to neighbouring land - order for costs of application - appeal against order for costs only - appeal only available against "a decision to grant or not to grant an access order" - whether appeal against order for costs such a decision - appeal incompetent
Practice and procedure:- appeal from Local Court - order for access to neighbouring land - order for costs of application - appeal against order for costs only - appeal only available against "a decision to grant or not to grant an access order" - whether appeal against order for costs such a decision - appeal incompetent

LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW) s 11, s 24, s 26, s 27, s 27(2)(b), s 29(1), s 31, s 31(1), s 31(2)
Local Courts Act 1982 (NSW) s 73, s74

DATES OF HEARING: 28/02/2006

EX TEMPORE JUDGMENT DATE: 02/28/2006

LEGAL REPRESENTATIVES: APPLICANT
J B Simpkins SC (barrister)
SOLICITORS
Woolf Associates
RESPONDENT
M G Craig QC
SOLICITORS
PMF Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

28 FEBRUARY 2006

31228 of 2005

FORDHAM & ANOR V FORDYCE
JUDGMENT

HIS HONOUR:

An order for access to land is made

1 The applicants in this court, Mr and Mrs Fordham, are neighbours of the respondent in this court, Mrs Fordyce. Mrs and Mrs Fordham are the owners and occupiers of 21 Bell Street, Burraneer and Mrs Fordyce is the owner and occupier of 23 Bell Street, Burraneer.

2 On the common boundary of their respective properties is a dilapidated retaining wall. Mrs Fordyce wished to replace the wall. Mrs Fordyce made application under s 11 of the Access to Neighbouring Land Act 2000 (NSW) (“Access Act”) for an order for access to the land of Mr and Mrs Fordham. The application was made to the Local Court as is required by the Access Act.

3 Originally, the purpose of the access sought was to demolish the existing dilapidated wall and replace it with a new retaining wall. In a subsequent application, the purpose changed to removing the existing wall and instead constructing a battered slope to form the boundary.

4 As part of the works proposed the applicant sought to remove certain hedges, trees and shrubs on Mr and Mrs Fordham’s land within 2.5 metres of the eastern boundary.

5 Mrs Fordyce’s applications were contested by Mr and Mrs Fordham for some time. Eventually, however, after protracted negotiations, the parties reached a compromise in an agreement dated 24 May 2005 in the form of orders to be made by the Local Court.

6 On 24 May 2005, the Local Court, constituted by Magistrate R J Abood, made orders in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fordham v Fordyce

Details

AGLC: Fordham v Fordyce [2006] NSWLEC 109
Case: [2006] NSWLEC 109
Decision Date: 02/28/2006

CaseChat Overview and Summary

In this case, the applicants, Gary Shaun Fordham and Narelle Jane Fordham, appealed against a decision of the Local Court regarding the costs of an application for an access order to neighbouring land owned by the respondent, Louise Aileen Fordyce. The dispute centred around the interpretation of the Access to Neighbouring Land Act 2000 (NSW), specifically section 31, which allows an appeal to the Land and Environment Court against a decision to grant or not grant an access order. The applicants argued that the decision regarding costs was ancillary to the decision to grant or not grant an access order and thus fell within the scope of the appeal. However, the Court found that the appeal was incompetent as the decision in question did not fall within the description of "a decision to grant or not to grant an access order." The Court held that the decision regarding costs was made under a separate power and could not be characterised as ancillary or incidental to the decision to grant or not grant an access order. Therefore, the appeal was dismissed, and the applicants were ordered to pay the respondent's costs as agreed or assessed.

Orders